CROKER v PERKS & Anor [1999] NSWSC 752

New South Wales Supreme Court CITATION : CROKER v PERKS & Anor [1999] NSWSC 752 CURRENT JURISDICTION : Administrative Law List FILE NUMBER(S) : 30003/99 HEARING DATE(S) : 14 July 1999 JUDGMENT DATE : 14 July 1999

Clayton Robert CROKER (Plaintiff) v PARTIES : Edward PERKS (First Defendant)

Residential Tenancies Tribunal (Second Defendant) JUDGMENT OF : Barr J at 1

LOWER COURT JURISDICTION : Residential Tenancies Tribunal LOWER COURT FILE NUMBER(S) : 98/36532 LOWER COURT JUDICIAL OFFICER :

COUNSEL : Plaintiff: In Person First Defendant: E Olsson Plaintiff: In Person SOLICITORS : First Defendant: Christine Turnbull Solicitor Second Defendant: Australian Government Solicitor CATCHWORDS : CASES CITED : Residential Tenancies Tribunal Act 1987 ss 3, 6, 52, 53, 64, 65, 80, 83, 107 and 110. DECISION : Summons dismissed; The plaintiff must pay the costs of the first defendant in an amount to be agreed or assessed.

THE SUPREME COURT REVISED OF NEW SOUTH WALES ADMINISTRATIVE LAW LIST

GRAHAM BARR J

Wednesday, 14 July 1999

30003/99 - CLAYTON ROBERT CROKER v EDWARD PERKS & ANOR

JUDGMENT 1 HIS HONOUR: By his summons filed on 11 January 1999, the plaintiff seeks against the first defendant, Edward Ernest Perks the following orders:

1. An order that personal property in detention be returned. 2. The order of the Residential Tenancies Tribunal be set aside. 3. The sum of $100,000.00. 4. Damages. 2 The summons was amended pursuant to directions made by the Administrative Law List Judge to add the Residential Tenancies Tribunal as a defendant. The Tribunal has filed an appearance and submits to the orders of the Court save as to costs. 3 According to the evidence of the first defendant, which I accept as accurate and truthful, he is and was at all material times a part owner and the manager of premises at 33 Cooper Street, Surry Hills. The premises contain fifteen rooms which are available for occupation on a weekly basis. There is no minimum or maximum time set for which a person can stay. No written agreement is entered into by any person staying in a room. The first defendant keeps a key to each of the rooms and enters them as necessary to check on their cleanliness. Most rooms are cleaned weekly and common areas are cleaned daily. A person wishing to stay pays a fee for the room and is provided with sheets, bedding, pillows, pillow slips and a towel. There are two kitchens and three bathrooms which are shared by all the occupants of the rooms. Each person taking a room is shown a list of house rules. 4 The first defendant has an office on the premises and he is present there between 8.30am and 6.30pm on each weekday and at other times on Saturdays. 5 I accept that this was the state of affairs during the time leading to the events complained of by the plaintiff. 6 On 9 September 1998 the plaintiff went to see the first defendant and asked whether there was a room available. The first defendant told him that there was at $100 per week. He explained about the supply of sheets and the like and about the rules for sharing the kitchen and the bathroom. He told the plaintiff about the cleaning arrangements and gave him a printed list of rules. One of the rules was as follows: 12. Tenancy - Your room is let on a casual basis. Occupation may be terminated at any time by either party for any reason. 7 The rules were set out under a heading including the words Moira Private Hotels. 8 I accept the evidence of the first defendant that the plaintiff stayed in the premises for about ten weeks and paid each week the amount he was required to pay. 9 On 12 November 1998 his rent was due for payment and the first defendant asked the plaintiff where his rent was. The plaintiff said that he could not pay. Later on the same day, the first defendant handed the plaintiff a Notice to Pay. It was dated 12 November 1998 and set out certain material before stating: Your rent is overdue and must be brought up to date by paying $100 on or before 19.11.98.